Constitution Daily

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Judge blocks new rules against birth control access

December 16, 2017 by Lyle Denniston


Finding that the Trump Administration had no legal authority to create sweeping exemptions to the birth-control mandate under the Affordable Care Act, and ruling that the new rules potentially could cause “enormous and irreversible harm” to women across the nation, a federal trial judge on Friday temporarily barred the enforcement of the rules anywhere in the country.

U.S. District Judge Wendy Beetlestone of Philadelphia was the first jurist among the five now handling legal challenges to the new exemptions to reach a decision.  Her order barring enforcement, if it withstands a possible appeal, would be in effect until after she holds a full-scale trial on the challenge by the state of Pennsylvania.

The new rules, put into effect on October 6 with no chance for public comment beforehand, were one of the most significant actions the new Administration has taken this year to bolster claims of religious freedom.  But the new exemption not only is much wider for groups opposed on religious grounds to birth control, but also for the first time allowed many businesses or organizations to opt out of the mandate based on “moral” objections.

The Philadelphia judge was highly critical of the exemption based on morality, suggesting that it would have an “insidious effect” that could include an employer opting out of the mandate based on a moral belief “that women do not have a place in the workplace.”  The judge added: “It is difficult to comprehend a rule that does more to undermine the [ACA’s] contraceptive mandate or that intrudes more into the lives of women.”

Wondering how that exemption would be enforced, Judge Beetlestone said that, if it were a government agency that did so, the agency would be “empowered to impose its own version of morality on each one of us.”

The judge did not rule on the constitutional challenge to the new rules, but instead ruled that the agency had not followed the required procedures for adopting and implementing them, and also decided that neither the ACA itself nor the federal law that protects religious liberty – the Religious Freedom Restoration Act – gave the government any legal authority to adopt the exemptions.

The legal battle over the birth-control mandate has been going on almost from the moment in 2011 when the Obama Administration first adopted rules to carry out that provision of the ACA, which required health insurance coverage for “preventive services” to protect women’s health.  The Supreme Court has twice ruled on the Obama-era rules, once exempting from the mandate profit-making companies that are owned by a family that has religious objections to providing some of the contraceptives to their female workers, and then ordering lawyers on both sides of the religious dispute to try to work out their differences – a mission that ultimately failed.

With President Trump entering office, he issued an executive order in May ordering federal agencies to consider changing the Obama Administration rules on the mandate, to deal with “conscience-based objections.”

That led the Departments of Health and Human Services, Labor, and Treasury, over several months of study, to devise an entirely new set of exemptions.  Under the broad new religious exemption, any non-profit or for-profit entity, whether its ownership was confined to only a few people or it was owned by a wide group of stockholders, to claim an exemption from the mandate based on religious objections.  Under the new moral exemption, any non-profit entity or any for-profit entity that is closely held by a small group of owners, can opt out of the mandate for “sincerely held moral convictions.”

Those eligible for the new exemptions could take themselves out from under the mandate without filing any notice to the government to claim the exemption, and need only notify its employees that it is denying coverage, if that is a duty imposed under another federal law.

The agencies claimed that they needed to put the rules into effect immediately, with none of the procedural steps required by federal administrative law, because of the continuing fight in the courts over the mandate, and because they claimed Congress had allowed them to forego the procedural steps.

They also sought to justify the new religious exemption as being the right thing to do under the Religious Freedom Restoration Act.

Judge Beetlestone rejected all of the legal arguments that Administration lawyers had made in defense of the new exemptions, and found that officials had no authority under the ACA to create such gaps in coverage of the mandate.   The judge also ruled that there was no urgency that required the new exemptions, and found – based on existing precedents in her federal circuit – that imposing the mandate on the entities that might seek exemptions does not put a burden on their religious liberty.

The Administration has the option of appealing the judge’s enforcement bar to the U.S. Court of Appeals for the Third Circuit – a court that had twice before rejected legal challenges to the contraceptive mandate.

There was no immediate sign of an appeal by the Administration, but an order of Roman Catholic nuns, the Little Sisters of the Poor, formally notified Judge Beetlestone that – if she allowed them to enter the case – they would appeal to the Third Circuit Court.

Other cases challenging the new exemptions are pending in federal trial courts – two in California (both before the same judge), and one each in Washington, D.C., Indiana and Massachusetts.  The one in Judge Beetlestone’s court has been on the fastest track.

In allowing the state of Pennsylvania to bring its lawsuit against the new rules, the Philadelphia judge concluded that it was likely to be harmed because it would have to pick up the expense of providing contraceptives if employers cut off access, and because the state would be harmed in its role of protecting women’s health.

Legendary journalist Lyle Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on


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